Category Archives: Legal & Regulatory

How Do You Grow Business in China? Four Perspectives

Situation: A company has established a foothold in China. Their objective is to grow that business. The CEO is curious about the lessons that others have learned while doing business in China. How do you grow business in China?

Advice from the CEOs:

  • There continues to be ambivalence about the legal challenges of doing business in China. Primary concerns include both protection of IP and corporate / securities law. Become the firm that lifts the fog and charge a premium for this talent. Play off of corporate fear factors about doing business in China.
  • Networks in China look much different from networks in the US.
    • In China there is the government, and then there is the Communist Party which really runs things.
    • Particularly on a regional basis, the Chinese Communist Party has both formal, informal, and “nonaffiliated” branches and activities. All of these may be controlled by local or regional officials with little or no oversight by Beijing. Much depends upon shifts in the political climate.
    • Contacts within Chinese companies and law firms will be critical to understanding how to negotiate these networks on behalf of the company’s Chinese and American clients.
  • China has been big in the press for several years but may not be center of focus of all large firms yet. They may be waiting for additional clarity before making a significant investment China. Be a pioneer who points the way for corporations that feel that they have to be part of the China game.
    • As you develop expertise in China, this may generate opportunities to become the service bridge for other firms who find it more efficient to rely on others’ specialized expertise rather than build their own expertise in China.
  • Use the Blue Ocean Strategy techniques that are used by large corporations to create differential advantages for the company’s China presence.

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How Do You Best Test a New App Online? Five Perspectives

Situation: A CEO has a new app that her company wants to test online. The principal challenge is avoiding a “catastrophic success” – success that ramps so quickly that the company is unable to deliver the quality or responsiveness expected by users. How do you best test a new app online?

Advice from the CEOs:

  • The challenge is similar to that faced in the massively multiplayer game space.
    • Creators target a small number of known enthusiasts (sneezers) with the message that they are special. The creators ask them to preview a new game and provide feedback that will help the creators produce the best game possible.
    • Never apologize for an Alpha or Beta test. Let enthusiasts know that they are getting the first peek at what will be the greatest thing since sliced bread. Enthusiasts will tolerate Alpha conditions – as long as the company responds quickly to their suggestions for service or performance improvement.
  • For initial live tests hype the coolness and uniqueness of early availability and adoption.
    • Don’t lower expectations – manage them by responding very rapidly and fixing any glitches. This is why Web companies are 24-hour, eat and sleep in the office affairs during launch and for as long post-launch as needed to assure success.
    • Continually hype the coolness of being involved early.
    • Use the current version as the early test. When the company is ready to spread beyond the very first users, reward them for sneezing the app to other users.
      • For example, as a Beta Testers, users get 10 free 1-year plug-ins to give to their friends. For each additional user that they bring on-board, they get an additional 10 free 1-year plug-ins.
      • This technique supports the coolness of having been a Test participant because it makes the participants cooler with their close circle of contacts. The really smart ones will give free plug-ins to other sneezers and influencers. Reward this latter group for bringing on additional users.
  • Using lessons from the gaming market:
    • Shake out all issues pre-Alpha Test.
    • Conduct automated testing of the software via server farms that are set up for this.
    • Be prepared for upgrades – both in the software and in the server farms. Typically upgrades are conducted while the software and systems are live.
    • Create test localities to pre-test any upgrades to assess the impact on performance and service prior to deployment. This minimizes disruption to the broader audience.
    • Recruit, alert, and reward those who assist with these tests.
  • It is possible to conduct an unsophisticated Alpha Test, but this can’t be risked in Beta Tests.
    • Alpha testing is usually conducted as an internal exercise and lasts until all of the bugs have been identified and worked out.
    • The Beta test is then planned, with a known number of sites or users.
  • Concerning IP Protection:
    • Threats will come from two sources:
      • The iTunes types who may perceive the new offering as a threat to their markets – ones with deep pockets to keep the company busy defending its legal position.
      • International teams who rapidly clone any new technology that they find for a variety of motives. These groups tend to work from locales where IP protection is difficult to impossible.
    • IP is not secure until tested in courts. Often this involves the most innocuous aspects of the IP or software offering. In addition, big players may seek injunctions to halt service until courts resolve claimed IP conflicts.

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How Do You Boost Employee Ownership of Job Safety? Four Ideas

Situation: A company is concerned because recent accidents on the job have boosted their Modification or MOD rate and increased company expenses. They have held workshops with employees and talked about increasing safety, but employees have been lax in complying with safety measures because these are time-consuming. How do you boost employee ownership of job safety?

Advice from the CEOs:

  • Safety is key to the bottom line and future of the company. Enlist employees to monitor each other and point out when others are acting unsafely.
    • Allow / encourage employees to “harass” (in a playful sense) each other if they see someone not working safely.
    • Anyone caught in inappropriate unsafe behavior is penalized and required to pay $1 into a kitty which is spent on a company-wide benefit such as a pizza lunch.
    • Create a presentation, graphically showing the negative impact that a high MOD rate has on the company, and on employees’ incomes. Hold a company meeting, give this presentation and discuss with them how costly hazardous behavior is, and how jobs can ultimately be lost as a result.
    • If nothing else works, explore creating a shell corporation to employ the employees who are subject to potential injury and effectively “outsource” them like high tech does.  This may lower the MOD rate to 100 as a new business.
  • Look for other insurers who will lower the company’s MOD rate.
  • Create consequences for flagrant violations of safety guidelines.
  • Do thorough background checks before hiring new workers. Avoid new hires with a history of disability claims.

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Do You Expand Production Locally or Internationally? Five Points

Situation: A company has built a very successful specialty manufacturing business in the US. Their manufacturing operations are labor intensive, with manufacturing practices optimized using motion studies and sharing best practices developed on the production floor. The CEO is evaluating whether it makes more sense to expand production in the US or to explore international options. Do you produce domestically or internationally?

Advice from the CEOs:

  • There are trade-offs between domestic and international production. Quality labor is available internationally at lower costs than in the US. However, risks include potential loss of quality control and higher levels of waste.
  • While investigating international production options, focus first on less critical operations where savings from lower labor costs outweigh the potential cost of wasted material.
  • Do not try to move highly controlled operations. These will include critical operations which require both an elevated level of operator skill and close supervision.
  • Before evaluating international options, break down the steps of manufacturing or processing to identify specific subcomponents or subprocesses that could be outsourced at reasonable risk.
    • For example, look at high volume parts where quality and variation in tolerances is less critical. These will be the best candidates for production in a lower cost, potentially lower quality environment.
  • How critical are trade secrets or patented IP to production? In the US and Europe there are strong protections for IP. However, these protections are not as strong in all countries. If production is outsourced to countries with poor IP protection, this may enable IP theft and create future low-cost competition.

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How do You Manage a Key Partner Relationship? Five Points

Situation: A company was created from IP originally developed by the founder at a large corporation that was not interested in commercializing it. The new company has now become successful and visible, with the large corporation as an important partner. The CEO wants to make sure that she has all bases covered to secure the future of the new company. How do you manage a key partner relationship?

Advice from the CEOs:

  • There must be clear agreement between the company and partner on ownership of the original IP – a legal document signed by both parties. You can bet that should a conflict arise, the lawyers representing the larger company will argue that their client owns the IP. Once this is secured, focus on developing and licensing software that you clearly own.
  • Develop contingency plans should the key partner decide to exit the business on which your relationship is based. Identify what other companies could replace lost revenue. Start to build these relationships.
  • If the partner helps to fund current development, take the money that you save and develop your own IP, independent of the partner relationship. As an alternative, at least develop critical components of the software as your own IP, without using the partner’s funding.
    • This will free you to develop other customer segments to broaden your business base.
  • What concerns does the partner have? Strategically, large corporations can be uncomfortable if they feel dependent upon a much smaller company. There are two things that you do:
    • Makes a concerted effort to assure that you are essential to the large corporation’s overall business.
    • Make change as painful as possible.
  • How would you get paid if the large partner exited the relationship?
    • Negotiate a contract with a 2-year window to any change that partner wants to make. This will provide you with the room to develop new clientele should the partner exit.
    • Have contingency plans to rebuild capabilities that might be lost and sell it to other clients.
    • Customize your software by client. In the process, you will develop new methods to keep your edge over competitors.
    • Keep critical parts of your processes “manual” so that they are essentially trade secrets and not easily replicable if the partner were to try to take over the IP.

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How Do You Negotiate Contract Terms? Three Recommendations

Situation: A company has secured a significant new contract with a new, large customer. The customer sent over their standard, non-negotiable contract which includes the right to cancel orders anytime, even if the company has invested significant funds preparing product against those orders. How does the company respond? How do you negotiate contract terms?

Advice from the CEOs:

  • Before you sign the contract talk to the customer about restocking or cancellation fees in cases where you have already invested irrecoverable funds against the customer’s orders. See if they will adjust their purchase order clause or offer language to cover unrecoverable costs.
  • If the customer says that they cannot change the contract, ask for an addendum or side letter of understanding that will protect you from loss of sunk costs against cancelled orders.
  • If the customer will not bend on any contract language, you can go ahead and sign the contract and then take care of your needs as they submit purchase orders. Create a stamp that you can stamp on their purchase orders defining your protections. Each PO is a new contract that supersedes the general contract.

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How Do You Optimize Your Business Model? Six Points

Situation:  A company is in the process of shifting their business model to better address customer needs. They have three different models under consideration. Management is split between these models, but must arrive at a consensus. How do you optimize your business model?

Advice from the CEOs:

  • Right now, you are considering three different potential models:
    • Tools – your old model
    • Data – produced by your old model
    • Service – your new model
    • These are different models with different prospects.
  • The money makers in marketing focus on data, not tools. Data is information, and this is what is valuable to clients. If you want to focus on the data component of your offering.
  • Currently, you are scraping data from social media and matching this to your client’s database on a real-time basis. There’s a model and value here because you are enhancing your client’s current database by making it more useful and actionable to them.
  • You have tools to enable and add value to existing client databases by allowing them to better segment their database. Again, there is value here.
  • Your core IP is the ability to correlate diverse data sources. Have you protected this IP? If not, this needs to be a top priority.
  • How much information that you scrape from social media sources can you share without violating privacy? This is something to think about because people are becoming increasingly sensitive about companies collecting their private information.

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What are Your Obligations for Use of Data? Five Perspectives

Situation: A company wants to add additional apps to its current service. One possible source is a website that aggregates and publicizes relevant information. The CEO is concerned about whether these data can be used by the company and whether using these data will expose the company to legal action. What are your obligations for use of data?

Advice from the CEOs:

  • Under fair use you can use data processed from other sources and resell this. The key term is “processed.” This means that you must add some of your own value to the data. You cannot just republish data through your site as though you had collected and analyzed it yourself.
  • You cannot copy and repost a copyrighted article. Text is copyrighted, but extracted facts are not. If you want to use text from a copyrighted source, you must get permission from the author or publisher. You can quote a source by providing appropriate references.
  • You can include a link to a relevant site without taking copyrighted information.
  • If the data that you wish to use from another site contains information that includes personally identifiable data – data that would allow a third party to identify personal information about an individual and misuse that personal data to the detriment of the individual – then a distinct set of regulations apply. If you even suspect that this could be the case, seek legal counsel on your obligations.
  • When you are using the Internet, your audience is international. The rules for use of data derived from other sources differ by country or region. Consult your lawyer for general guidelines that will allow you to use data from other sources.

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How Important Is It to Protect Your IP? Five Points

Situation: A company sells specialized components to a large manufacturer. The manufacturer is building a new product and, for this product, is requiring that all suppliers be approved suppliers. The company sells other products to this manufacturer and is in process of becoming an approved supplier, but the manufacturer wants to start using the company’s components for their new product now. As a work-around, they have asked the company to teach someone else their IP until they are approved. Would you share your IP with another company? How important is it to protect your IP?

Advice from the CEOs:

  • This is a creative request from a large company to a smaller supplier. Absent a legal requirement that suppliers must be approved – not the case here – they are simply trying a bureaucratic ploy to get you to release your IP. Your component is necessary to them and they can’t get an equivalent component from anyone else. If they want your component for their new product, and want to release the new product on their internal timeline, insist on a waiver for the new policy until you have become an approved supplier.
  • Stand on principal. This is your IP and it is proprietary. If another supplier, a potential competitor, has the IP to do what you do, you don’t need to train them. If they need your IP to make the components you need to protect it.
  • Ask the manufacturer to put you on the fast track to approval supplier status. This is faster than teaching someone else your process.
  • Escalate this within the customer company until you find an audience.
  • Bottom Line – don’t give away your secret sauce. This request is unreasonable. Unless, of course, the other company is willing to give you satisfactory compensation for your IP.

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How Do You Set Expectations for an Employee? Six Suggestions

Situation: A company hired an employee one year ago. The employee is competent but slow. Even after a year on the job, other employees with similar skills and experience are able to complete the same job three times faster. What is the best way to handle this? How do you set expectations for an employee?

Advice from the CEOs:

  • The most important principle governing situations like this is clarity of communications. You must clearly express your expectations, and you must assure that the employee clearly understands your expectations.
  • Assure that expectations are clearly expressed. This means what you expect in terms of performance, and firm timelines for achieving minimum requirements. You also must assure that the employee understands the consequences for failing to meet minimum requirements. The best assurance is written confirmation that the employee understands what is expected.
  • Don’t be vague or nice about your expectations, performance requirements or the consequences for failing to meet minimum requirements. This risks sending the wrong message to the employee.
  • Put the employee on a performance improvement plan to meet minimum job requirements. Monitor and document for 30-60 days and then handle according to how the employee responds.
  • If the individual can’t meet the objective, but has potential value to the company, offer the person an appropriate position at the level that the new position pays.
  • Have a second person in the room when you deliver the message. If you determine that you have to terminate the employee and the employee elects to sue, this will help your case in a judicial action.

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